TaxTMI 
TaxTMI 
1996 (8) TMI 473
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....nto account. After expiry of the period prescribed for payment of the full sale price, on 19.4.1985 the appellant deposited Rs.3,727.25 which fell short towards the sale price of Rs.23,500/-. On 18.9.1985 the executing court accepted this amount of Rs.3,727.25, taking the view that the shortage in deposit was due to the mistake of the court office in making the calculation and the court has inherent power to correct its own mistake. The judgment-debtor filed objection to the validity of the sale which was rejected. The judgment-debtor, respondent no.1, preferred a revision against this order of the executing court to the District Judge, which was dismissed. The judgment debtor, respondent no.1, filed a petition under Article 227 of the Constitution of India in the High Court, which has been allowed. By interim order dated 19.12.1986 the High Court directed further proceedings for the confirmation of the sale to remain stayed subject to the condition that the Judgment-debtor, respondent no 1, deposit the entire decretal amount within 2 months. On 9.1.1987 the judgment- debtor deposited Rs.19,773/-, which fell short by Rs.2,007.85. This shortage also appears to have occurred due t....
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....rtage in deposit by the mistake of the Court in specifying a lesser amount in the sale proclamation as the decretal amount then due. He submitted that in these circumstances Rule 90 and not Rule 85 of Order XXI applies and report to the provision in Rule 90 not being made by the Judgment debtor, the validity of the sale remains unaffected. He submitted that the judgment- debtor had to make an application under Rule 90 within the prescribed period of 15 days to set aside the sale which was not done and, therefore, the sale had to be confirmed. It was also argued that the actual date of sale in the present case must be taken to be the date on which the correct amount due under the decree was calculated by the Court for the purpose of set off against the sale price and not the date on which the sale was actually held. Learned counsel further submitted that the judgment-debtor not having made the deposit in accordance with Rule 89(2) of Order XXI, the confirmation of sale cannot be questioned. In reply Shri J.P. Goel learned counsel for the respondent no.1, judgment-debtor, submitted that the provision in Order XXI Rule 85 is mandatory, requiring strict compliance and the undoubted fai....
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....5 8 and 86: xxx xxx xxx The scheme of the rules quoted above may be shortly stated A decree-holder cannot purchase property at the Court-auction in execution of his own decree without the express permission of the Court and that when he does so with such permissions he is entitled to a set-off, but if he does so without such permission, then the Court has a discretion to set aside the sale upon the application by the judgment-debtor, or any other person whose interests are affected by the sale (Rule 72)~ As a matter of pure construction this provision is obviously directory and not mandatory - See Rai Radha Krishna and Others Vs. Bisheshar Sahal and Others (49 IA 3125. The moment a person is declared to be the purchaser, he is bound to deposit 25 per cent of the purchase-money unless he happens to be the decree- holder, in which case the Court may not require him to do so (Rule 84). The provision regarding the deposit of 25 per sent by the purchaser other than the decree- holder is mandatory as the language of the rule suggests, The full amount of the purchase-money must be paid within fifteen days from the date of the sale but the decree holder is entitled to the advantage o....
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.... resold unless the judgment-debtor satisfies the decree by making the payment before the resale. The argument that the executing court has inherent power to extend time on the ground of its own mistake was also expressly rejected. In our opinion the contentions of learned counsel for the appellant are fully negatived by this decision of the Court; We may also indicate that the persistent assertion on behalf of the appellant that the shortage in deposit by the appellant was occasioned by a mistake of the executing court in indicating the figure of the decretal amount due in the sale proclamation also has no sound basis. the provisions in Order XXI relating to sale of property beginning with Rule 64 clearly indicate the responsibility of the decree-holder in this behalf and his role in the drawing up of the sale proclamation. The executing court proclamation and draws up the sale proclamation on the basis of information supplied by the decree-holder. Rule 66 of Order XXI is as under:- "Proclamation of sales public auction :- "(1) Where any property is ordered et sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made 11....
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.... the amount for the recovery of which the sale is ordered. It follows that the amount for the recovery of which the sale is ordered is stated in the sale proclamation on the basis of the duly signed and verified statement made by the decree-holder's accompanies the decree-holder's application for an order sale. The specification of the amount for recovery of which the sale was ordered in the sale proclamation being based on a statement made and verified by the decree-holder, it is not open to the decree-holder to claim that he was misled by any mistake of the Court in the specification of the amount. the Blame, if any, for the mistake lies squarely on the decree-holder. Moreover, the decree-holder knows best the amount to which he is entitled under the decree, and he does not have to depend on anyone else to furnish this Information. A mistake for which the decree-holder himself is responsible cannot furnish a ground to the decree-holder to avert the adverse consequences on him of his failure to comply with to mandatory requirement of Rule 85. It is also to be noted that the duty to pay the full amount of purchase money within the prescribed period of 15 days from the date of sa....